FEDERAL COURT OF AUSTRALIA

SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641

SZCOZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2251 OF 2006

MOORE J

9 May 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of motion of 14 March 2007 be dismissed.

2.                  The applicant pay the first respondent's costs of the notice of motion fixed in the sum of $300.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By notice of motion filed 14 March 2007, the applicant seeks to set aside the orders made on 27 February 2007 dismissing an application for leave to appeal the decision of a Federal Magistrate of 20 October 2006.  The applicant did not appear on 27 February 2007 and I dismissed the application pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) ("the Act") for the reasons which appear in the judgment: see SZCOZ v Minister for Immigration and Citizenship [2007] FCA 227 ("SZCOZ").  The orders were entered on 21 March 2007.  The Court's power to vary or set aside an order made under s 25(2B)(bb) of the Act pursuant to s 25(2B)(bc) of the Act, notwithstanding entry of the order, was recently confirmed by the Full Court of the Federal Court in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61.

2                     On 22 March 2007, orders were made that the motion be dealt with without an oral hearing, pursuant to Order 52 rule 2AB of the Federal Court Rules.  The parties were invited to file summaries of argument pursuant to Order 52 rule 2AB(2), which the first respondent has done.  The applicant has filed an affidavit in support of the notice of motion.  That affidavit was sworn on the day of the hearing and filed together with the motion.  In that affidavit, the applicant states that he was unable to attend the hearing on 27 February 2007 due to "severe sickness" and that no one was at home to assist him to explain his situation to the Court.  He requests "another chance to represent myself and present my case".

3                     The first respondent opposes the present application on the following bases.  First, the discretion to set aside orders must be exercised with caution having regard to public interest that there be finality in litigation, particularly in the present case where there is a background of extensive litigation: see SZCOZ at [2].  Secondly, the power to set aside judgment is not to be exercised unless the applicant can show that by accident and without fault on his or her part the order was made without the applicant being heard.  The applicant failed to provide an adequate explanation for his failure to attend the hearing and has not provided any medical evidence to support his vague assertion of "severe sickness".  The applicant has also not explained why he was not able to attend or contact the Court on the day of the hearing but was able to swear an affidavit before a Justice of the Peace on that same day.  Thirdly, there was no demonstrated utility in any proposed appeal to justify setting aside the orders.  The application for leave to appeal and the application for an extension of time did not contain any grounds, and no particulars of supporting evidence establishing any error in approach and decision of the Federal Magistrate had been provided.  Finally, the grounds in the draft notice of appeal did not contain any proper particulars and did not identify any real basis for impugning the approach and decision of the Federal Magistrate.

4                     For the reasons identified by the first respondent, the motion should be dismissed.  The applicant is to pay the first respondent's costs fixed in the sum of $300.

Associate:

Dated:         9 May 2007